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Supreme Court strikes down Defense of Marriage Act as unconstitutional

By Michael Doyle

McClatchy Washington Bureau

WASHINGTON, D.C. — The Supreme Court on Wednesday struck down the politically charged centerpiece of the Defense of Marriage Act, in a significant victory for marriage equality.

Issuing the first of two long-awaited decisions involving same-sex marriage, the divided court said the 1996 law violates the constitutional guarantees of equal protection.

“DOMA divests married same-sex couples of the duties and responsibilities that are an essential part of married life,” Justice Anthony Kennedy wrote for the majority. Kennedy joined the court’s four liberal justices in the 5-4 decision.

The Defense of Marriage Act decision issued at 10 a.m. EDT Wednesday was the first of two same-sex marriage decisions expected from the Supreme Court. The other involves a challenge to California’s Proposition 8, which banned gay marriage in the state.

Section 3 of the Defense of Marriage Act declares that, for the purposes of providing federal benefits, marriage is “only a legal union between one man and one woman as husband and wife” and a spouse is only a “person of the opposite sex who is a husband or a wife.”

The definition is important because it determines eligibility for a host of federal rights, benefits and privileges.

The Government Accountability Office has identified more than 1,100 areas of federal law in which marriage matters. These range from tax and welfare benefits to employment and immigration. A same-sex military couple, for instance, is denied housing, health insurance and disability benefits, nor is the spouse eligible for burial alongside his or her spouse in a national cemetery.

“The statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, through its marriage laws, sought to protect in personhood and dignity,” Kennedy wrote.

Coming on the final day of the term that began last October, the Defense of Marriage Act and Proposition 8 decisions drew a large crowd outside the court building on Capitol Hill, across the street from Congress. The mood alternated between festive and anxious, with same-sex marriage supporters seeming to outnumber opponents.

Congress passed the Defense of Marriage Act in 1996 by wide margins, with supporters at the time including Democratic Sen. Harry Reid of Nevada, who is now the Senate majority leader, and then-senator Joe Biden of Delaware, now the vice president.

The House of Representatives, which passed the bill by an overwhelming 342-67 margin, explained in a committee report that the law was meant to convey “moral disapproval of homosexuality.” One of the law’s chief backers at the time, current Sen. Tom Coburn, R-Okla., declared during the House debate that homosexual conduct was “based on perversion and … based on lust.”

The federal law defining marriage inserted the national government into what had traditionally been state territory.

In the years since, though, a number of Defense of Marriage Act supporters began back-pedaling. It is now opposed by former congressman Bob Barr of Georgia, a Republican author of the bill, who in July 1996 decried “the flames of hedonism, the flames of narcissism, the flames of self-centered morality (that) are licking at the very foundations of our society: the family unit.”

The Obama administration, too, initially defended the federal law, as is customary for administrations, but it stopped in February 2011 after concluding that Section 3 violated the Constitution. In its place, House Republicans funded the defense of the statute through what’s called the Bipartisan Legal Advisory Group. Despite its name, the five-member group authorized the legal action on a strictly party line vote, with three House Republicans outvoting two House Democrats. The Democratic-controlled Senate was not involved.

The case arose from a challenge filed by Edith Windsor, a computer programmer who in 2007 married her long-time partner, Thea Clara Spyer. They remained a couple until Spyer died in 2009. The Defense of Marriage Act prohibited Windsor from receiving a deduction afforded married couples. She had to pay $363,053 in estate taxes, and the Internal Revenue Service denied her refund request.

Twelve states and the District of Columbia now recognize same-sex marriage, and a recent Pew Research Center survey found that 72 percent of those asked thought that legal recognition of same-sex marriage was inevitable.

“The justices are not likely to announce that the ongoing debate over same-sex marriage is now over,” said Richard W. Garnett, a University of Notre Dame Law School professor.

“While we can’t predict what the court will say, the past few years building up to this day have seen a sea change in accepting the idea that all loving and committed couples … deserve the protections and dignity that only come with marriage,” James Esseks, an attorney with the American Civil Liberties Union, said Tuesday.

Advocates from all sides were ready for prime time once the decisions come.

At New York City’s Lesbian, Gay, Bisexual and Transgender Community Center, Edith Windsor, the now 84-year-old woman who challenged the Defense of Marriage Act, will be appearing at a noon EDT press conference. Ninety minutes later, in Los Angeles, California Attorney General Kamala Harris is convening her own event. Twitter, social media and a tidal wave of press releases are poised to explode.

“I would say both (Windsor), and the rest of America, are ready for a fair ruling,” said Esseks, director of the ACLU’s Lesbian, Gay, Bisexual, Transgender and AIDS Project.